The Nightmare of Terror-Related Blacklisting

JURIST Guest Columnist Maureen Duffy of the University of Calgary Faculty of Law says that the use of "blacklists" as a tool for counter-terrorism efforts does not increase public safety, and instead may result in a form of legal punishment based on a subject's associations alone...

Abousfian Abdelrazik's bizarre plight has been the subject of considerable public discussion in Canada. He has never been charged, much less convicted, of any wrongdoing associated with terrorism, but one would never know that from the way he has been treated.

In the post-9/11 world, a mere suspicion of association with terrorism can trigger nightmarish scenarios that are frequently compared to the plight of Joseph K. in Kafka's The Trial. Proof of wrongdoing is often replaced with blacklisting, allowing for the imposition of sanctions similar to those seen after a criminal prosecution, but without any requirement that the entity responsible for the listing prove its allegations. Often, such listing is done in secret, with the affected person only learning that they have been placed on the list after encountering a negative repercussion, and often with no information ever revealed as to the basis for being placed on the list or the evidence supporting the listing.

When a suspicion of terrorism association attaches, a presumption of guilt seems to be increasingly tolerated, and fighting this presumption can be difficult at best because of the secrecy often involved. The person so suspected, and thus listed, may never have a day in court, an opportunity to refute any evidence, or the opportunity to appeal to a higher authority.

Abdelrazik's case vividly illustrates the nightmare that can emerge from this approach, especially since he was hit from several different directions with different lists at different times and with different repercussions.

In 2009, Justice Russel Zinn of the Federal Court of Canada, commented that "[Abdelrazik] is as much a victim of international terrorism as the innocent persons whose lives have been taken by recent barbaric acts of terrorists." I agree with Justice Zinn's expressed horror, but I would not characterize Abdelrazik as a victim of international terrorism so much as a victim of misguided and ineffective initiatives that purport to fight terrorism.

Case Background

In December 2011, Abdelrazik was removed from the UN Security Council's Al-Qaeda Sanctions List (1267 list). Removal from the list appears to end the formal part of Abdelrazik's ordeal, although legal action [PDF] on his behalf is pending. The facts of Abdelrazik's case, on their own, serve as a powerful indictment of blacklists like the 1267 list. In his 2009 ruling, Justice Zinn outlined the bizarre history.

Abdelrazik is a dual Canadian-Sudanese citizen, who came to Canada as a refugee. Abdelrazik knew Ahmed Ressam, the so-called "Millenium Bomber," who was convicted in the US for plotting to blow up the Los Angeles Airport. Abdelrazik was not implicated in the plot and voluntarily testified against Ressam.

Abdelrazik also knew Adil Charkaoui, who was the subject of a "security certificate," a mechanism allowed under Canadian immigration law that has led to several high-profile and long-term detentions. Charkaoui's story was, in its own right, the subject of considerable controversy, including two Supreme Court of Canada decisions, one of which found the security certificate process to be in violation of Canada's Charter of Rights and Freedoms. Like Abdelrazik, Charkaoui has never been charged, much less convicted, of any terrorism-related offenses. After several years of legal battles, in 2009, a Federal Court ultimately dismissed the security certificate against Charkaoui, who is now seeking an apology and reparations from the Canadian government.

In March 2003, Abdelrazik went to Sudan to visit his sick mother, but also, he has said, to escape harassment by the Canadian Security and Intelligence Service (CSIS), which resulted in part from his acquaintance with Ressam. Sudanese officials arrested him in September 2003. When Abdelrazik went to Sudan, he had a passport, which would have been valid had he returned at the time of his arrest, but it expired during his ordeal.

Abdelrazik was detained for 11 months, and he said he was tortured during his detention. Accounts conflict as to whether the Canadian government was involved in detaining him. He was placed on house arrest in 2004, and he tried to return to Canada. Canada initially assisted Abdelrazik, and a plane ticket was purchased. At the last minute, however, the airline refused to fly him back, and that is how he learned he was on the US "no-fly" list.

In 2005, the Sudanese government issued a letter exonerating Abdelrazik, but they arrested him again, this time holding him until 2006. He said that he was tortured again.

Abdelrazik was again released, and, that day, the US government listed him on its US Department of Treasury list [PDF] as having high-level affiliations with al Qaeda. Specifically, the US has accused him of yet another association, this time with Abu Zubayda. Later that month, Abdelrazik was added to the 1267 list.

Inclusion on the 1267 list carries with it sanctions, including asset freezes and a global travel prohibition. Canada has regulations under its UN Act implementing the 1267 list, which, among other things, prohibit anybody from providing financial assistance to a person on the list. Abdelrazik sought help from the Canadian government in being taken off the list, and with apparent support from both CSIS and the Royal Canadian Mounted Police, Canada initially requested his removal from the list. The request was denied in 2007 with no reasons given.

In April 2008, Abdelrazik, fearing again that he was about to be arrested, sought refuge in the Canadian Embassy in Khartoum, where he was still living at the time of the June 2009 Federal Court decision. The Canadian Government obtained clearance from the 1267 Committee to provide expenses for Abdelrazik's basic necessities, as, more than six years after he first went to Sudan, he had no assets.

While living in the Canadian Embassy, Abdelrazik tried to apply for a Canadian passport. He had filed an initial application in 2005, to which he received no response. He tried again in 2008, after the Canadian government publicly announced that it would provide emergency travel documents for him when he was cleared to travel. In August 2008, Abdelrazik was able to secure a flight back to Canada, but the Canadian government refused to issue a passport. He was notified that the reason was based on national security.

In April 2009, Abdelrazik was again scheduled to leave on another confirmed flight, but Canada again denied his request for travel documents. Abdelrazik received the denial, with no explanation, two hours before he was scheduled to leave.

Abdelrazik's continued residence in the Canadian Embassy, with the Canadian government blocking his return, led to considerable publicity and to the case before the Federal Court. Citing Section 6(1) of the Canadian Charter of Rights and Freedoms, which expressly provides, among other things, that Canadian citizens have a right to enter Canada, the Court ordered the Canadian government to issue emergency travel documents and to help Abdelrazik arrange travel back to Canada.

Even after he returned to Canada however, Abdelrazik's problems did not end. He was still on the 1267 list, so he was prohibited from employment, and even those offering him financial assistance for living expenses faced the possibility of criminal prosecution. Abdelrazik also faced the stigma of being the only Canadian on the list. Although Canada supported Abdelrazik's request early on, it later took a "neutral" position on his removal from the list. In December 2011, eight-and-a-half years after he first went to Sudan, Abdelrazik was removed from the 1267 list. He was not told why he was removed.

Flimsy Associational Ties

Abu Zubaydah, the latest person with whom Abdelrazik was suspected of associating, has been in US custody since 2002 and at Guantanamo Bay since 2006. He was repeatedly waterboarded. He has never faced a criminal proceeding, nor has he faced a trial before even the highly controversial Military Commissions at Guantanamo Bay. He has asserted that he was subject to repeated assaults while in custody, and it is believed that the tapes of his interrogations are among those controversially destroyed by the US Central Intelligence Agency in 2005. It has also been asserted that he acknowledged knowing Abdelrazik during these "enhanced" interrogations.

The "case" against Abdelrazik appears to have been based on nothing more than flimsy associational allegations. He knew somebody who was criminally prosecuted for terrorism, but he was not implicated, and he voluntarily helped the US government in its prosecution. Neither Charkaoui nor Abu Zubaydah has ever faced any form of criminal proceeding. It is not suggested that mere association with them would have justified what happened if allegations against them were actually proven, but Abdelrazik's liberty was taken away based on alleged associations with people who were not even, themselves, ever proven before a competent judicial body to have any association with terrorism.

Eight-and-a-half years later, Abdelrazik is back in Canada, free, and off of at least one of the blacklists, although he reportedly remains on the US lists. Canada has not charged him with any criminal offenses, further supporting an implication that there is no proof of any wrongdoing.

There is no win in this situation. Turning the life of an innocent man into a protracted nightmare with no proof of wrongdoing does nothing to keep anybody safer from terrorism. What it does is harm the credibility of those governments and entities that claim to be champions of human rights.

Some efforts have been made to fight back against arbitrary listings such as what happened here. An interesting case was recently reinstated [PDF] by the US Court of Appeals for the Ninth Circuit, involving a Malaysian Ph.D. student who was placed on the "no-fly" list and not allowed to return to the US after a conference in Malaysia. She has alleged, in a civil suit, violations of freedom of association under the First Amendment, as well as violations of procedural due process and of equal protection. One can hope that cases like this will provide an opportunity to shed some light on some of these murky processes.

Abdelrazik has, justifiably, criticized the Canadian government for abandoning him. His lawyer compared these lists to tactics used during the McCarthy era or to Stalin's regime. In the Belmarsh Detainees case from the UK House of Lords, Lord Scott eloquently said that "[i]ndefinite imprisonment in consequence of a denunciation on grounds that are not disclosed and made by a person whose identity cannot be disclosed is the stuff of nightmares." Abdelrazik's story is, indeed, the "stuff of nightmares."

Maureen Duffy is an Assistant Professor at the University of Calgary Faculty of Law. Duffy is originally from the US, where she studied and practiced law before pursuing graduate education in Canada. During her graduate education, she has served as a researcher for the McGill Clinic for the Special Court for Sierra Leone and was awarded the the O'Brien Fellowship for Human Rights and Legal Pluralism, as well as the Social Sciences and Humanities Research Council of Canada Fellowship. She would like to thank the students in her Advanced Public Law class for their engaging and insightful comments about this case.

About Academic Commentary

Academic Commentary is JURIST's platform for legal academics, offering perspectives by law professors on national and international legal developments.
JURIST Forum welcomes submissions (about 1000 words in length - no footnotes, please), inquiries and comments at academiccommentary@jurist.org